J.O.M. and B.T. v. Department of Family and Protective Services

Opinion issued May 19, 2011

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-10-00643-CV

———————————

Jose Montes and Brandy Taylor , Appellants

V.

Department

of Family and Protective Services , Appellee

On Appeal from the 506th Judicial District Court

Grimes County, Texas

Trial Court Case No. 31349

MEMORANDUM OPINION

In

this accelerated appeal, appellants, Jose Montes and Brandy Taylor, challenge

the trial court’s decree, entered after appellants had signed a rule 11 agreement [1] and affidavits of

relinquishment, terminating their parental rights to two of their minor

children. In two issues, appellants

contend that the trial court erred in finding their appeal frivolous [2] and the evidence is legally

and factually insufficient to support a finding that they had knowingly and

voluntarily executed the affidavits of relinquishment. [3]

We

affirm.

Background

After

the Texas Department of Family and Protective Services (“DFPS”) filed a

petition for conservatorship and to terminate appellants’ parental rights to their

three children, the trial court empanelled a jury to consider the termination

of appellants’ parental rights to two of the children. During the jury trial, appellants’ trial counsel

requested a fifteen minute recess to “finalize [a] conversation” that she was

having with appellants. The trial court

granted the request, and, approximately four hours later, appellants informed

the trial court that they were waiving their right to proceed with the jury

trial and had signed affidavits relinquishing their parental rights to the two

children. DFPS then moved for a trial

amendment to include the additional ground that the parents had executed “an

unrevoked or irrevocable affidavit of relinquishment of parental rights,” and

the trial court granted DFPS’s request. See Tex. Fam. Code Ann. § 161.001(1)(K)

(Vernon Supp. 2010). The trial court

then conducted a bench trial on the sole ground of the voluntary relinquishment

of appellants’ parental rights to the two children. Appellants also entered into a rule 11

agreement with the children’s foster parents to allow appellants access to the two

children four times a year. In proving

up their affidavits of relinquishment, appellants testified that they had consulted

with their attorney and reviewed the affidavits with her, it was in the best

interest of their children to execute the affidavits, they signed the affidavits

voluntarily, and, by signing the affidavits, they knew that they were giving up

their parental rights and could not change their minds.

At

the conclusion of the bench trial, the trial court found by clear and

convincing evidence that appellants “did, in fact, voluntarily relinquish

[their] parental rights in and to the [two] children” and it was in the best

interest of the two children that appellants’ parental rights be

terminated. Subsequently, the trial

court entered the order terminating appellants’ parental rights to the two

children. Appellants later filed a “Statement

of [Appellate] Points,” alleging nine points for appeal. The trial court found appellants to be indigent,

held a hearing to determine whether any appeal from the termination order would

be frivolous, and found the appeal would be frivolous. [4]

After making the frivolousness

finding, the trial court allowed appellants’ attorney to make a bill of

exception, in which Montes testified about the circumstances surrounding his

execution of the affidavit of relinquishment of his parental rights. Appellants’ trial counsel and Kim Arredondo,

appellants’ counselor and therapist, also testified about the circumstances

surrounding the execution of the affidavits of relinquishment.

Standard of Review

When

an appeal is sought from an order terminating the parent-child relationship, a

trial court must determine whether “the appeal is frivolous as

provided by section 13.003(b)” of the Texas Civil Practices and Remedies Code. Tex.

Fam. Code Ann . § 263.405(d)(3). Section

13.003(b) provides that, “[i]n determining whether an appeal is frivolous, a

judge may consider whether the appellant has presented a substantial question

for appellate review.” Tex. Civ. Prac. & Rem. Code Ann. §

13.003(b) (Vernon 2002). Generally, an

appeal is frivolous when it lacks an arguable basis either in law or in

fact. See In re K.D. ,

202 S.W.3d 860, 866

(Tex. App.—Fort Worth 2006, no pet.) (citing De La Vega v. Taco

Cabana, Inc. , 974 S.W.2d 152, 154

(Tex. App.—San Antonio 1998, no pet.) ).

If a trial court makes a frivolousness

finding, an aggrieved parent may appeal, but the appeal is initially limited to

the frivolousness issue.

See Tex. Fam. Code Ann. § 263.405(g) (Vernon 2008); In re K.D. , 202 S.W.3d at 865 (“[O]nce the

trial court determines that an appeal is frivolous, the scope of appellate

review is statutorily limited to a review of the trial court’s frivolousness

finding.”). That is, before we can reach

the substantive merits of an appeal in which a frivolousness finding has been

made, we must first determine whether the trial court properly found the appeal

to be frivolous. See Lumpkin v. Dep’t

of Family and Protective Servs. ,

260 S.W.3d 524, 526 (Tex. App.—Houston [1st Dist.] 2008, no pet.); In re S.T. ,

239 S.W.3d 452, 454 (Tex. App.—Waco 2007, order) (per curiam) .

We review a trial court’s frivolousness finding under an abuse of

discretion standard. In re M.N.V. , 216 S.W.3d 833, 834 (Tex. App.—San

Antonio 2006, no pet.); In re K.D. ,

202 S.W.3d at 866 . Applying that standard, we decide whether the

trial court acted without reference to any guiding rules or principles; in

other words, we must decide whether the act was arbitrary or unreasonable. Downer v. Aquamarine

Operators, Inc. , 701 S.W.2d 238 ,

241–42 (Tex. 1985) .

Voluntariness of Affidavit

In

their first issue, appellants argue that the trial court erred in finding their

appeal frivolous because appellants’ testimony that “they felt pressured and

felt like they had no other choice” but to sign the affidavits of

relinquishment created a substantial question for appellate review “based on a

question of law and facts.” In their

second issue, appellants argue that the trial court could not have found, by

clear and convincing evidence, that the affidavits were knowingly and

voluntarily executed. [5]

An appeal of a termination order is

limited to the issues presented in a statement of appellate points. See Tex.

Fam. Code Ann. § 263.405(i); see Pool v. Tex. Dep’t

of Family & Protective Servs. , 227 S.W.3d 212, 215

(Tex. App.—Houston [1st Dist.] 2007, no pet.) . Thus, if a trial court has determined that an

appeal would be frivolous, the court has necessarily determined that each of

the issues identified in the statement of appellate points is frivolous; that

is, they lack a substantial basis in law or fact. See In re S.T. , 263 S.W.3d 394 ,

403–04 (Tex. App.—Waco 2008, no pet.) . Here, appellants identified nine appellate

issues in their statement of appellate points; however, at the hearing they

chose to proceed on only one ground: “The Affidavits of Relinquishment signed

by both Brandy Taylor and Jose Montes were not executed voluntarily, but were

executed under duress.”

Family Code section

161.001 authorizes a trial court to terminate a parent-child

relationship if the court finds by clear and convincing evidence that the

parent has executed an unrevoked affidavit of relinquishment of parental rights

and termination is in the best interest of the child. Tex.

Fam. Code Ann . § 161.001(1)(K), (2). “A direct or collateral attack on an order terminating

parental rights based on an unrevoked affidavit of relinquishment of parental

rights or affidavit of waiver of interest in a child is limited to issues

relating to fraud, duress, or coercion in the execution of the affidavit.” Id.

§ 161.211 (Vernon 2008).

Implicit in the Family Code is the

requirement that an affidavit of relinquishment of parental rights must be

voluntarily executed. See Williams v.

Williams , 150 S.W.3d 436, 447 (Tex. App.—Austin 2004, pet.

denied) ; Vela v. Marywood , 17 S.W.3d 750, 759 (Tex. App.—Austin

2000), pet. denied , 53 S.W.3d 684 (Tex. 2001) ;

Neal v. Tex. Dep’t

of Human Servs. , 814 S.W.2d 216 ,

218–19 (Tex. App.—San Antonio 1991, writ denied) .

Moreover, because an affidavit of

relinquishment waives a constitutional right, it must be made voluntarily,

knowingly, intelligently, and with full awareness of its legal consequences. See Vela ,

17 S.W.3d at 759 . The proponent of the affidavit has the burden

to establish by clear and convincing evidence that the affidavit was executed

according to the terms of section 161.103 of

the Family Code . Tex.

Fam. Code Ann. § 161.103 (Vernon 2008); Vela ,

17 S.W.3d at 758 . An affidavit of relinquishment in proper form

is prima facie evidence of its validity. In re B.B.F. , 595

S.W.2d 873, 875 (Tex. Civ. App.—San Antonio 1980, no writ) .

Once the proponent has met that burden,

the burden then shifts to the affiant to establish by a preponderance of the

evidence that the affidavit was executed as a result of fraud, duress, or

coercion. Vela ,

17 S.W.3d at 758 ; see also Tex. Fam. Code Ann. § 161.211(c). Duress occurs when, due to some kind of

threat, a person is incapable of exercising his free agency and unable to

withhold consent. In re D.E.H. , 301 S.W.3d 825, 829 (Tex. App.—Fort Worth 2009, pet.

denied).

Appellants assert that

Montes’s testimony, presented in their bill of exception, “that they felt

pressured” and “had no other choice” but to sign the affidavits “created a

substantial question for appellate review based on a question of law and

facts.” A review of the record reveals

that when proving up his affidavit of relinquishment in the bench trial, Montes

testified that he had had an opportunity to review the Affidavit of Voluntary

Relinquishment of Parental Rights, reviewed everything in the document with his

attorney, understood all of his rights under the Texas Family Code, understood

exactly what he would be waving by signing the affidavit, and did not have any

questions about the agreement. He then

stated, “What I want to say is I’m in agreement.” Montes also stated that he understood that

once the document was signed and entered with the court he could not change his

mind. The following exchange between

Montes and his counsel then occurred:

[Appellants’

Counsel]: And are you asking the Court to

review the affidavit of voluntary relinquishment and understand that you

voluntarily and fully enter into this?

[Montes]: No.

[Appellants’ Counsel]: You do not voluntarily signed this?

[Montes]: Oh, yes, yes.

[Appellants’

Counsel]: And after voluntarily signing

this, do you want the Court to accept and approve it; is that correct?

[Montes]: Yes.

Taylor

similarly testified that she had reviewed every statement in the affidavit of

relinquishment with her attorney and her attorney explained the affidavit to

her and gave her the opportunity to ask questions about the affidavit. She understood her legal rights under the

Texas Family Code, and she understood that, by signing and filing the affidavit

with the court, she was giving up her parental rights, and, once the document was

filed, she could not change her mind.

At the hearing on the issue of the

frivolousness of this appeal, appellants’ counsel asserted that Montes speaks

very little English, “he believes that he was forced into signing” the

affidavit, and he “felt that he [did not] clearly understand what he was

signing when he executed the affidavit.”

Counsel, referring to the testimony of Montes, asserted that it revealed

some “confusion” and Montes did not “fully understand[] the questions.” Taylor was not present at the hearing, and

counsel made no argument specifically as to the circumstances surrounding the

execution of her affidavit.

However, the record reveals that Montes

testified that he was in “agreement” with terminating his parental rights. Moreover, after the “confusion” alluded to by

his counsel, Montes was asked again, in order to clarify, if he had voluntarily

signed the affidavit. Montes answered,

“Oh, yes, yes.” Furthermore, an

interpreter was present throughout the trial and during the four-hour break,

after which appellants signed the affidavits of voluntary relinquishment. Based on the evidence presented in the

record, we conclude that appellants raised no evidence of duress. The only evidence presented to and considered

by the trial court was appellants’ testimony, from the initial transcript at

trial, as to their signing of the affidavits. Although appellants may have felt “pressured”

to execute their affidavits, and “forced” to sign the affidavits, there is no

evidence of any “threat” that would have rendered them unable to withhold

consent. The trial court took judicial

notice of the record, and, because no motion for new trial was filed, there was

no other evidence presented before the trial court entered its frivolous

finding.

We note that appellants, on appeal, cite

to several statements made by Montes in the bill of exception. Montes testified that he felt forced to sign

the affidavit, he felt as if he had no other choice but to sign the affidavit,

he felt pressured because he did not have any other options, he believed that

the jury was going to believe the “lies” of DFPS and take away his children,

and he felt “blocked.” Montes also

testified that he believed that if he did not sign the affidavit, DFPS would

take his third child away from him. He

also thought that signing the affidavit was “a temporary relief to all the

lies.” However, Montes’s testimony,

presented in appellants’ bill, that appellants felt pressured to make a

decision and were faced with the possible removal of their third child does not

establish that their relinquishment was the result of duress or other

wrongdoing. See D.E.H. , 301 S.W.3d at 830 ; In

re R.B. , 225 S.W.3d 798, 806 (Tex. App.—Fort Worth 2007, no pet.).

Accordingly, we hold that the trial

court did not abuse its discretion in finding appellants’ issues to be

frivolous.

Conclusion

We

affirm the judgment of the trial court.

Terry

Jennings

Justice

Panel

consists of Justices Jennings, Higley, and Brown.

[1] See

Tex. R. Civ. P. 11.

[2] See

Tex. Fam. Code Ann. §

263.405(d) (Vernon 2008).

[3] See

id. § 161.001(1)(K) (Vernon Supp. 2010).

[4]

See Tex. Fam. Code Ann.

§ 263.405(d). Although appellants filed

a statement of appellate points, they did not file a motion for new trial. Counsel for DFPS objected to the relevance of

the factual information that appellants wanted to present in their bill of

exception, stating, “If no motion for new trial was filed thereby extending the

court’s plenary power and ability to have a fact-finding hearing, then strictly

you are limited to the frivolousness determination which I don’t believe

supports the ability of the [appellants] in this case to offer evidence as to

the facts surrounding the execution of the affidavits of relinquishment in this

case.” The trial court sustained the

objection, allowed the respective parties to present an argument, and took

judicial notice of the reporter’s record from the bench trial.

[5]

DFPS argues that appellants have

waived their second issue on appeal because, at the frivolousness hearing, they

abandoned all but one of their issues in their statement of appellate

points. DFPS notes that this issue is

similar to issue seven in their statement, which reads, “The Trial Court lacked

sufficient evidence to support a finding by clear and convincing evidence that

[appellants] voluntarily executed an Affidavit of Relinquishment as to each child the subject of this suit.” It asserts, however, that on appeal, a party seeking to overturn a termination order based on an

unrevoked affidavit of relinquishment is limited to arguing fraud, duress, or

coercion in the execution of the affidavit. See Tex. Fam. Code Ann . § 161.211(c)

(Vernon 2008). Appellants’ argument in

their second issue on appeal is that the trial court could not have found that they

had executed the affidavits voluntarily because they were acting under

duress. In their issues presented,

appellants ask (1) “Whether the appeal lacks an arguable basis in either law or

fact and is frivolous” and (2) “Whether the Affidavits of Voluntary

Relinquishment of Parental Rights signed by [appellants] were not executed

voluntary but were executed under duress.”

Accordingly, their second issue is necessarily intertwined with their

first issue and has not been waived.